Carbon Black Export v. The SS Monrosa

• Decision Date: 18 April 1958
• Docket Number: No. 16667.,16667.
• Citation: 254 F.2d 297
• Parties: CARBON BLACK EXPORT, Inc., Appellant, v. THE SS MONROSA, Her Engines, Tackle, Etc., and Navigazione Alta Italia, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 297 (1958)

CARBON BLACK EXPORT, Inc., Appellant, v. THE SS MONROSA, Her Engines, Tackle, Etc., and Navigazione Alta Italia, Appellees.

No. 16667.

United States Court of Appeals Fifth Circuit.

April 18, 1958.

Carl G. Stearns, Houston, Tex. (Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., Hill, Rivkins, Middleton, Louis & Warburton, New York City, of counsel), for appellant.

E. D. Vickery, George W. Renaudin, Houston, Tex., (Royston & Rayzor, Houston, Tex., of counsel), for appellees.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the court below correctly declined jurisdiction (on the ground that the bills of lading vested exclusive jurisdiction in Italian Courts) of a libel for damages to and nondelivery of cargo, brought by an American citizen against the ship upon which the cargo was loaded and against the owner of the ship. In December, 1955, the libelant, Carbon Black Export, Inc., a manufacturer and exporter of carbon black, delivered to, and shipped on board, the SS Monrosa at Houston, Texas and New Orleans, Louisiana about 30,000 bags of carbon black. The shipments to three Italian ports were covered by twenty-seven bills of lading, all on the same printed form.

Upon arrival of the Monrosa at the first Italian port, a portion of the shipment was delivered in damaged condition, and that destined for the other two Italian ports was never delivered at all. Libelant claimed damages in the sum of $110,000.00.

The libel was filed in the court below upon the return, some three months later, of the Monrosa to Houston, Texas and prayed that process issue against the Monrosa, her engines, tackle, etc., and that all persons claiming any right, title or interest in the steamship be cited to appear and that the steamship be condemned and sold to pay libelant's demands. Besides the in rem action against the Monrosa, Navigazione Alta Italia, the owner of the vessel, was made a respondent.

Six days after the filing of the libel respondent Navigazione filed a "Stipulation to Abide Decree," reciting that the in rem proceeding had been brought against the SS Monrosa and that Navigazione had filed a claim¹ to the vessel, and including this language: "* * * the parties hereto hereby consenting and agreeing, that in case of default or contumacy on the part of said claimant or its surety, execution may issue against their goods, chattels and land for the sum of $100,000.00." This stipulation, on which National Surety Corporation was surety, was conditioned "that the claimant above named shall abide by and pay the money awarded, including costs of court, by the final decree rendered in the cause by this court, or in case of an appeal by the appellate court."

About three months thereafter respondent Navigazione filed a motion praying that the court below decline jurisdiction of the cause based upon the terms of the bills of lading, chiefly the following provision:

"Clause 27 — Also, that no legal proceedings may be brought against the Captain or ship owners or their agents in respect to any loss of or damage to any goods herein specified, except in Genoa, it being understood and agreed that every other Tribunal in the place or places where the goods were shipped or landed is incompetent, notwithstanding that the ship may be legally represented there."

The motion set up grounds which respondents contended established the reasonableness of this provision. Affidavits were thereupon filed by one of the proctors for libelant opposing the motion, and one of the proctors for respondents favoring it. The facts upon which the court below acted were set forth in the motion and the two affidavits.

The District Court filed a memorandum opinion² and entered a final decree reciting that it was "of the opinion that it has not been shown that the agreement in the bills of lading between Libellant and Respondents to sue or be sued only in the Courts of Genoa, Italy, is unreasonable," and granting the motion of respondents to decline jurisdiction and canceling and discharging the stipulation to abide decree filed by the respondent-claimant. Libelant appeals, setting forth its grounds in detail;³ and respondents point to the motion to decline jurisdiction filed by Navigazione, and the affidavit of its proctor filed as representative of the "Respondents" as spelling out their contentions that the action of the court below was correct.⁴

We agree with libelant that the court below was in error in granting the motion to deny jurisdiction under the facts of this case. Particularly is this true with respect to the proceeding in rem against the ship itself. As to this feature of the case, the decision of the Second Circuit in Muller⁵ has no application. The ship there involved had been lost at sea and there was no in rem action. The clause of the bill of lading there involved⁶ is broader than that in the case before us. The language there encompassed "any claim against the carrier arising under the bill of lading," while the language of the exclusionary clause here was confined to legal proceedings brought against the Captain or ship owners or their agents. There is nothing in Clause 27 which has any tendency to establish that the parties intended that it should be made applicable to an in rem proceeding against the ship itself.

What we said recently in Motor Distributors, Ltd. v. Olaf Pedersen's Rederi A/S⁷ is persuasive here, although we were considering the general question of whether justice would be better subserved by retaining or declining jurisdiction rather than the terms of an exclusionary clause:

"Moreover, something deeply significant in the whole field of maritime law is here at stake. With respect to ocean-going carriers it seems that one of the most universally recognized rules of law is that which gives the right to libelant, possessing a maritime lien against a vessel, to proceed in rem in the jurisdiction where the vessel is found."

Finding no authorities to the contrary, and feeling that the exclusionary clause relied on by respondents does not in terms apply to in rem proceedings, we hold that the court below was in error when it granted the motion to decline jurisdiction of the in rem feature of the libel.⁸

We are of the opinion also that the court below should have denied the motion of respondent Navigazione to decline personal jurisdiction as to it. In essence, the motion was based upon Clause 27 as buttressed by the doctrine of forum non conveniens. Any consideration of such a question starts with the universally accepted rule that agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced.⁹

We do not find it necessary to espouse or reject the position taken by the Court of Appeals of the Second Circuit in the cases mentioned above, which are relied upon as marking a departure from this general rule.¹⁰ The facts before that Court in those cases were, in each instance, materially different from those before us. In addition to those already discussed, it is important to note that the contracts of carriage here were made in the United States and were partially performed here, that the bills of lading specifically adopted the Carriage of Goods by Sea Act of the United States as part of their provisions and were printed in English, tending to indicate that the parties recognized that the courts of the United States were in a good position to pass upon the rights of the parties to them. It is further noteworthy that the testimony of the crew of the Monrosa was sought by libelant...